Marshall v. Federal Exp. Corp.

• Decision Date: 12 December 1997
• Docket Number: No. 96-7258,96-7258
• Citation: 130 F.3d 1095
• Parties: , 8 A.D. Cases 431, 11 NDLR P 166 Angela MARSHALL, Appellant, v. FEDERAL EXPRESS CORPORATION, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1095

130 F.3d 1095

327 U.S.App.D.C. 302, 8 A.D. Cases 431,

11 NDLR P 166

Angela MARSHALL, Appellant, v. FEDERAL EXPRESS CORPORATION, Appellee.

No. 96-7258.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 4, 1997.

Decided Dec. 12, 1997.

Appeal from the United States District Court for the District of Columbia; No. 94cv02618.

Marc Fiedler, Washington, DC, argued the cause for appellant. With him on the briefs was Roger C. Johnson.

Colby W. Morgan, Jr., Memphis, TN, argued the cause for appellee. With him on the brief were Larry S. Kaplan, John T. Midgett, Chicago, IL, and Merrell B. Renaud, Falls Church, VA. R. Mark Dare, Falls Church, VA, entered an appearance.

Before: SILBERMAN, WILLIAMS and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

STEPHEN F. WILLIAMS, Circuit Judge:

Angela Marshall was injured while on duty as a Senior Customer Service Agent with Federal Express, making it difficult for her to continue in that work. A fellow employee suggested that she apply for another job with Federal Express, as an Operations Agent at a different facility, which she would have been able to perform without difficulty. Soon thereafter, however, the same employee relayed another employee's belief that because Marshall's husband already worked at the same facility, Marshall could not work there in light of Federal Express's antinepotism rules. By the time Marshall discovered that this advice was wrong, the deadline for applying had passed. Shortly afterward she learned that the company had decided not to fill the spot at all.

Marshall filed a timely complaint with the Equal Employment Opportunity Commission, saying that Federal Express had "denied [her] the opportunity to apply for [the Operations Agent] position," in violation, she believed, of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA" or the "Act"). Later, because of the impact of the injury on her ability to perform her original job as a Customer Service Agent, Federal Express dismissed her. She filed no EEOC complaint on that subject.

Marshall then filed suit in district court under the Act, claiming discrimination not only in regard to her failure to secure the Operations Agent job but also her termination from the company. The district court granted Federal Express's motion for summary judgment. We affirm. We agree with the district court that Marshall exhausted her administrative remedies only as to her failure to secure the Operations Agent job, and that she failed to raise a material issue of fact to support her claim that Federal Express discriminatorily foreclosed that job.

* * *

Marshall began working at Federal Express in 1985. On February 13, 1992 she injured her back while working as a Senior Customer Service Agent at Federal Express's National Press Building station in Washington. She was placed on worker's compensation and began a leave of absence. In May 1992 she entered Federal Express's Temporary Return to Work program, which provides injured workers with light-duty work for 90 days. By the time her participation ended in August, Federal Express had hired someone else to fill her old job. The company, nonetheless, kept her on for some time thereafter, allowing her to extend her leave of absence.

On September 21, 1992 Opal Shields, a Federal Express Leave of Absence Manager, informed Marshall by letter that the lifting restrictions brought on by her injury left her unqualified to return to work as a Senior Customer Service Agent. She would be allowed to file an unlimited number of applications for jobs at Federal Express for which she was qualified, and would be given "placement preference" for such jobs, but if she did not find one within 90 days she would be fired. Federal Express contracted with a rehabilitation counselor to help Marshall find a job. Through Shields, the company also informed her of several job openings for which she could apply. Marshall declined to apply for positions at Dulles Airport in Virginia and in Columbia, Maryland, saying that her back condition prevented her from commuting to those places. She did apply for a sales position in December but Federal Express gave the job to someone else; that decision is not at issue here.

On January 8, 1993 Shields told Marshall about an Operations Agent position that had opened up at Federal Express's "DCA" station and urged her to apply. The parties seem to agree that Marshall's back injury would not have hindered her work as an Operations Agent. When Shields told Gary Aldred, the Senior Manager of the DCA station, that Marshall wanted to apply for the opening, Aldred balked. Marshall's husband already worked at the DCA station, and Aldred told Shields that company policy forbade relatives or spouses from working together. Shields relayed this information to Marshall and told her she could not apply after all.

Marshall suspected that someone had gotten the policy wrong--she recalled that she used to work in the same building as her sister--so she made further inquiries. It turned out Aldred was mistaken. The Federal Express policy manual says that "[b]lood-related and marriage-related employees may be hired and be permitted to work at the same locations, providing no direct reporting or supervisory relationship exists." There would have been no direct reporting or supervisory relationship between Marshall and her husband at the DCA station. By the time Marshall learned that she was indeed eligible to apply, however, the job had passed her by--on January 18 a personnel director told her that no more applications were being accepted. Indeed it soon became apparent that the job had passed everyone by--on January 21 Marshall was told that the Operations Agent vacancy at DCA had been withdrawn for budgetary reasons; this was confirmed a week later in a memorandum to the five candidates who had applied for the position.

In late January Marshall filed a charge with the EEOC, alleging that Federal Express had violated the ADA by not letting her apply for the Operations Agent job. On March 4, 1993--some 75 days after the expiration of her 90-day grace period--Marshall was fired. In August 1994 the EEOC concluded that the evidence was insufficient to support her ADA claim. This lawsuit followed.

* * *

Before bringing suit in federal court, ADA plaintiffs, like those under Title VII, must exhaust their administrative remedies by filing an EEOC charge and giving that agency a chance to act on it. 42 U.S.C. § 12117(a); Park v. Howard University, 71 F.3d 904, 907-09 (D.C.Cir.1995). A vague or circumscribed EEOC charge will not satisfy the exhaustion requirement for claims it does not fairly embrace. "[A]llowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would circumvent the EEOC's investigatory and conciliatory role, as well as deprive the charged party of notice of the charge, as surely as would an initial failure to file a timely EEOC charge." Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 127 (7th Cir.1989). Naturally every detail of the eventual complaint need not be presaged in the EEOC filing, but the substance of an ADA claim, like that of a Title VII claim, must fall within the scope of "the administrative investigation that can reasonably be expected to follow the charge of discrimination." Park, 71 F.3d at 907 (citation and internal punctuation omitted).

Marshall's wrongful termination claim fails to meet this test. The charge filed by Marshall with the EEOC made no mention of her termination. The Commission could not reasonably be expected to investigate Marshall's firing based on the allegations in the charge, which spoke only of Federal Express's failure to allow her to apply for the Operations Agent job. Marshall never filed a second charge alleging a discriminatory termination, nor did she amend her original charge or otherwise bring her termination to the Commission's attention.

Marshall concedes that the wording of her administrative charge failed to put the Commission on notice of her imminent termination, but claims that the accompanying affidavit did the trick. And indeed she did foreshadow her impending discharge in that affidavit, noting that Opal Shields "was in the process of terminating me," and adding, "I feel as if I am being given the run around, and I will be terminated soon." ¹ The Seventh Circuit takes the view that allegations in supporting affidavits may be considered for exhaustion purposes if the charging party makes clear that she wants the EEOC to investigate them. See Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 502 (7th Cir.1994). Even assuming the correctness of this approach, we do not read Marshall's off-hand forecasts of looming termination as a request that the EEOC investigate her discharge as a distinct act of discrimination. Marshall's wrongful termination claim is not properly before us.

Marshall also contends that Federal Express discriminated against her by failing to reasonably accommodate her disability. She says the company could have accommodated her in her Customer Service Agent job by waiving the job's lifting requirements or by transferring her to the Operations Agent...